Nowadays you saw that rape cases in India is increasing day by day. So, the main question arises here is which act is considered as rape? What are the punishment for the accused? And the most important point how can 'victim get justice'?

So, here are many provisions which helps woman their safeguards to rights. So, chapter V (of offences against woman and child ) of Bhartiya Nyaya Sanhita, 2023(BNS) deals with the provisions of rape, let us understand this concept through this article.
 

Of sexual offence Section 63 of BNS

Section 63 of BNS states about Rape A man is said to commit rape, if he,

• Penetrates (go through especially with force) his penis into the vagina, mouth, urethra, or anus of any woman or makes her do so with him or any other person.
  • The word 'mouth' used here in this section is added in BNS only, earlier it was not there in IPC.
• Inserts (push something or inserting anything) any object or a part of the body other than the penis into the vagina, anus, or urethra of a woman or makes her do so with him or any other person.
• Manipulates any part of the body of a woman to cause penetration into the vagina, anus, or urethra or any part of the body of such woman or makes her do so with him or any other person.
• Applies his mouth to the vagina, anus, or urethra of a woman or makes her do so with him or any other person.

Circumstances under which it falls:
Not essential to be present all of the seven description, but only one should be sufficient to called as a rape.

1. Against her will: Means that the act was done even though the woman resists by indicating or using force or threats. If a man had sexual intercourse with a woman against her will, it is considered rape. In the case of Deelip Singh Vs. State of Bihar (2004), the Supreme Court held that initial sexual intercourse between a man and a woman was against the will of the woman. However, later, she became a consenting party because of frequent promises of marriage. The court decided that the version was not trustworthy, and the charge against the accused was not founded.
    
2. Without her consent: Means that the woman does not give voluntary agreement for the performance or committing of such an act. If a male engages in any sexual intercourse with a woman without her consent, it is said to be rape. In the case of Sohan Singh Vs. State of Rajasthan (1997), the High Court stated that if a girl claims she did not consent to sexual activity during custody, the court will assume that the act was performed without her consent.
    
3. With her consent, but her consent has been obtained by putting a person into a fear of death or injury to someone she is interested in: Such consent is also not considered valid, and a man would be liable for committing rape.
    
4. With her consent, when the man knows that he is not her husband but the woman believes that he is her husband: Example: In a small village with no electricity, a newly married woman believed a man who entered her room was her husband. She gave consent under this belief, but the man knowingly committed a deceptive act. Such an act is considered rape.
    
5. With her consent, when the woman is of unsound mind or intoxicated: This is also considered rape.
    
6. With or without her consent, if she is below 18 years old: This is considered statutory rape.
    
7. When she is unable to communicate consent:

Explanations:

• 1. Vagina includes labia majora.
• 2. Consent means an unequivocal voluntary agreement when a woman, by words, gestures, or verbal or non-verbal communication, willingly performs such an act. Provided that if a woman does not physically resist penetration, it shall not automatically mean she is consenting.

Exceptions:

• 1. Medical procedures are not considered rape when a woman is examined by a doctor.
• 2. Marital rape: If a man performs sexual intercourse with his wife, who is above 18 years old, it is not considered rape.

Sections under BNS:

Section 64: Punishment for committing rape: If a man commits rape, he shall be punished with rigorous imprisonment of not less than 10 years, which may extend to life imprisonment, and shall also be liable to a fine. Section 65:

• 65(1): Whoever commits rape of a woman under the age of 16 years shall be punished with rigorous imprisonment of a minimum of 20 years, which may extend to life imprisonment, and shall also be liable to a fine.
   
• 65(2): Whoever commits rape of a woman under the age of 12 years shall be punished with rigorous imprisonment of a minimum of 20 years, which may extend to life imprisonment, and shall also be liable to a fine. Provided that such a fine must be reasonable to fulfill the medical expenses of the victim.

Section 66: Vegetative state: Whoever commits rape that causes the victim's death or leaves the victim in a persistent vegetative state shall be punished with rigorous imprisonment of a minimum of 20 years, which may extend to life imprisonment or the death penalty. Section 67: Whoever has sexual intercourse with his wife, who is living separately under an order of separation or without her consent, shall be punished with imprisonment of not less than 2 years, which may extend to 7 years, and shall also be liable to a fine. Section 68: Sexual intercourse by a person in authority:

• a. In a position of fiduciary or trust relationship
• b. A public servant
• c. Superintendent and manager of a jail
• d. On the management of a hospital or member or staff of the hospital

Those who commits crime of rape shall be punished with imprisonment not less than 5 years but may extend to 10 years and also liable to fine.

Sections of BNS

Section 69 of BNS (NEW PROVISION):

Whoever, by deceitful means or by making a promise to marry a woman without any intention of marrying and has sexual intercourse with her, such intercourse is not called rape but only sexual intercourse. Such a person would be punished with imprisonment which may extend to 10 years and shall also be liable for fine.

Section 70 of BNS:

• 70(1): Where a woman is raped by a group of persons with a common intent to do so, each person shall be equally liable for such an act. They shall be punished with rigorous imprisonment for a minimum of 20 years but may extend to imprisonment for life and shall also be liable to a fine. The amount of fine must be fair and reasonable to cover the victim's medical expenses.
• 70(2): When a woman under the age of 18 years is gang-raped by a group of persons with a common intention to do so, they shall be punished with imprisonment for life, and fine, or with death.

Section 71 of BNS: Punishment for Repeat Offenders

Whoever commits the repeat offence under Sections 64, 65, 66, or 70 shall be punished with imprisonment for the remainder of that person's natural life, or with death.

Section 72 of BNS:

Whoever prints or publishes the name or any matter related to the victim's identity or discloses the victim's identity for the offences under Sections 64, 65, 66, 76, 68, 69, or 70 of this Act shall be punished with imprisonment which may extend to 2 years and shall also be liable to fine.

Section 73 of BNS:

Whoever prints or publishes any matters related to the proceedings of the court referred to in Section 72 of this Act without the permission of such court shall be punished with imprisonment which may extend to 2 years and shall also be liable to fine.

Of Criminal Force and Assault Against Women

Section 74 of BNS:

Whoever assaults or uses criminal force on any woman, with the intention to outrage her modesty, shall be punished with imprisonment which shall not be less than 1 year but may extend to 5 years and shall also be liable to fine.

Section 75 of BNS: Sexual Harassment

• 75(1): A man is said to commit sexual harassment if he:
  • Physical contact and advances involving unwelcome and explicit sexual overtures,
  • A demand or request for sexual favor,
  • Showing pornography against her will,
  • Making sexually colored remarks.
• 75(2): Any man who commits the offence mentioned in Section 75(1) (i), (ii), or (iii) shall be punished with rigorous imprisonment which may extend to 3 years, or fine, or with both.
• 75(3): Any man who commits the offence mentioned in Section 75(1) (iv) shall be punished with imprisonment which may extend to 1 year, or fine, or with both.

Section 76 of BNS:
Whoever assaults or use criminal force to any woman with intent to disrobing or compelling her to be naked, shall be punished with term not less than 3 years but may extend to 7 years and shall also be liable to fine.

Section 77 of BNS:- voyeurism:
Whoever, watches , capture the images of a woman when she is engaging in a private act in such situation where she believed to be no one can observe it or watches such act, shall be punished with:

1. First conviction- not less than 1 years but may extend to 3 years and shall also be liable to fine.
2. Second conviction- not less than 3 years but may extend to 7 years and shall also be liable to fine.

Section 78 of BNS: stalking:

1. Any man who:
   1. follows a woman and contacts, or attempts to contact, when such woman has clearly indicated disinterest;
   2. monitors the woman by using electronics, internet, emails, or any other electronic modes.
   Provided that such conduct would not amount to stalking:
   1. if such act was performed for the purpose of detecting crime by the state;
   2. if such act was performed by law, or when law should be imposed by any person;
   3. when such act must have been reasonable and justified.
2. Whoever commits stalking shall be punished with:
   • On first conviction: imprisonment which may extend to 3 years and shall also be liable to fine.
   • On second conviction: imprisonment which may extend to 5 years and shall also be liable to fine.

Section 79 of BNS;
Whoever, by words gesture or act with the intention to insult the modesty of woman, shall be punished with simple imprisonment for the term which may extend to 3 years, and shall also be liable to fine.

Conclusion
India is a country where a lot of woman are suffering from many problems and the most common are sexual offences. But for protecting them, there are many safeguards and laws are made by the superior or government of India to protects women so they can freely enjoy their rights.

So, here BNS ( Bhartiya Nyaya Sanhita,2023), provides a laws related to such act as mentioned in above sections.

End Notes:

1. 2004 AIR SCW 6479
2. 1998CRILJ2618